Docket: T-73-12
Citation: 2012 FC 107
Vancouver, British Columbia, January 26,
2012
PRESENT: Roger R. Lafrenière, Esquire
Case
Management Judge
BETWEEN:
|
|
CHIEF JEFFREY NAPAOKESIK,
COUNCILLOR LIBERTY REDHEAD,
COUNCILLOR ERNIE REDHEAD,
COUNCILLOR SANDY MILES AND
COUNCILLOR HOWARD CANABIE
|
|
|
|
Applicants
|
|
and
|
|
|
SHAMATTAWA FIRST NATION
MEMBERSHIP COMMITTEE AS
REPRESENTED BY ELIE HILL,
SAM MILES, VERONICA MILES,
CELINE MILES, MABEL MILES-TAKER, DEANNA
REDHEAD, JOHN DOE AND RICHARD ROE
|
|
|
|
Respondents
|
REASONS FOR ORDER AND ORDER
[1]
On
January 10, 2012, the
Chief and Councillors of the Shamattawa First Nation (SFN), commenced an
application for judicial review of a decision by the Shamattawa First Nation
Membership Committee (SFNMC) dated January 9, 2012 purportedly removing the
Applicants from the office of Chief and Council of the SFN. The Applicants
concurrently filed a motion seeking an interim injunction prohibiting the
holding of an election for the offices of Chief and four Councillors, scheduled
to be held on January 18, 2012, an interim injunction staying the effect of the
meeting of the SFNMC which took place on January 9, 2012, or alternatively an
order reinstating the Applicants to their position pending final determination
of the application for judicial review. The Applicants also requested that the
motion be heard on an expedited basis.
[2]
By
Order dated January 17, 2012, Mr. Justice Leonard Mandamin declined to fix a
date for the hearing of the motion because the Respondents had not
been provided two clear days to file responding material, and no notices of
appearance or response of any kind had been filed by any of the Respondents to
the application for judicial review. Mr. Justice Mandamin ordered that the
application continue as a specially managed proceeding and directed the
Applicants could reapply to fix a date for hearing of the Applicants’ motion
upon service of their motion record on the Respondents, and completion of any
requirements arising in case management.
[3]
The
Notice of Application and the Applicants’ motion record was served on the
Respondents on January 14, 2012. The Respondents filed separate Notices of
Appearance on January 20, 2012.
[4]
A
case management conference was held by teleconference on January 26, 2012. In
attendance were Norman Boudreau, solicitor for the Applicants, and the
Respondents, Eli Hill, Sam Miles, Veronica Miles, Mable Miles-Taker, and Deanna
Redhead. The Respondents agreed that since most of them did not have telephone
or fax number, they could be contacted in the future through Eli Hill at his
phone number (204)-565-2898 or by e-mail at elihill458@hotmail.com.
[5]
On
January 25, 2012, after the close of business, Mr. Hill communicated a
request via voice mail that the case management conference be
adjourned. This request was reiterated during the case management conference as
Mr. Hill advised that the Respondents had consulted Ms. Aimée Craft, a
lawyer with the Public Interest Law Centre in Winnipeg, but had yet
to retain her services. The request was denied since the Respondents had ample
time to retain counsel and could not provide a sufficient reason to delay the
fixing of hearing date of the Applicants’ motion.
[6]
The
Applicants seek an expedited hearing of their motion. A brief overview of the
relevant facts is in order.
[7]
Mr.
Jeffrey Napoakesik was elected Chief of Shamattawa First Nation on August 10,
2010 for a two year term. The Respondents, who describe themselves as concerned
band citizens, called a membership meeting on January 2, 2012 to address
concerns of certain SFN members. According to Mr. Napoakesik, neither he nor any
member of Council were invited to the meeting. Although he did not attend the
meeting on January 9, 2012, Mr. Napoakesik listened to the proceedings
which were broadcast over the local radio airwaves. During the meeting, the
members in attendance were told that the Chief and Councillors had failed to
stop the consumption of alcohol on reserve, failed to provide a recreation
centre for the youth on reserve, failed to ensure construction of housing on
reserve, created a debt in the community, and each gave $1,700.00 to their
wives.
[8]
According
to Mr. Napoakesik, the allegations made
against his administration during the meeting were false. He was not provided
an opportunity to defend himself and his reputation against the allegations
that were made against his leadership. A vote was held resulting in the removal
of the Applicants from their offices as Chief and Council.
[9]
After
the vote was taken, the Respondent, Mr. Eli Hill, announced that there would be
a nomination meeting for the positions of Chief and four Councillors. On
January 11, 2012, the nomination meeting took place. According to the
Applicants, they were not allowed to attend the nomination meeting. In
addition, they were precluded from running in the election.
[10]
On
January 20, 2012, an election was held for the position of Chief of SFN and Mr.
William Miles was elected. It is unclear whether the Chief-elect will be
assuming the position of Chief while the present proceedings are outstanding.
An election for the positions of the four Councillors is scheduled to be held
tomorrow, on January 27, 2012.
[11]
On
the basis of the affidavit evidence filed by the Applicants (which has yet to
be contradicted), I am satisfied that the application for judicial review
raises a serious issue whether the principles of objectivity, impartiality and
fairness were respected in the process resulting in the removal of the
Applicants from their elected positions and the calling of an election on short
notice to replace them. The Respondent, Sam Miles, submits that the band custom
permits 25 members to convene a meeting. While that may be, it remains that the
allegations by the Applicants of lack of notice and denial of an opportunity to
defend themselves against allegations of grave misconduct call the entire
process of their divestiture into question.
[12]
There
is clearly great discord in the SFN community. The chaos and potential conflict
that may be caused by two administrations claiming to represent the SFN would
only exacerbate matters. In my view, the Applicants’ motion should be fixed for
hearing as soon as possible to address the current uncertainty regarding the
governance of the band.
ORDER
THIS COURT ORDERS that:
1.
The
Applicants’ motion for interim relief shall be heard by teleconference on
Wednesday, February 1, 2012 at 9:00 a.m. (Central).
2.
The
Applicants are granted leave to serve and file an additional affidavit in
support of their motion to update the events that occurred following the filing
of the motion record no later than January 27, 2012 at 2:00 pm (CST).
3.
Unless
and until a solicitor of record is appointed, service of any document on the
Respondents may be effected by sending a PDF version as an attachment to an
e-mail addressed to the Respondent, Eli Hill at elihill458@hotmail.com.
“Roger
R. Lafrenière”
Email this Content